Citation Nr: 21013892 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-00 762 DATE: March 10, 2021 ORDER Entitlement to secondary service connection on an aggravation basis for a right hip disability (secondary to service-connected degenerative joint disease of thoracic spine to include lumbar strain [referred to herein as back disability]) is denied. Entitlement to secondary service connection on an aggravation basis for a left hip disability (secondary to service-connected back disability) is denied. FINDINGS OF FACT 1. The Veteran’s right hip disability was not aggravated by his service-connected back disability. 2. The Veteran’s left hip disability was not aggravated by his service-connected back disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the right hip disability aggravated by the service-connected back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for the left hip disability aggravated by the service-connected back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1987 to July 1987 and from January 1990 to September 1997. In a June 2019 decision, the Board denied: (1) entitlement to service connection for a right hip disability (on both direct and secondary bases; and (2) entitlement to service connection for a left hip disability (on both direct and secondary bases). In an April 2020 Joint Motion for Partial Remand (JMPR), the U.S. Court of Appeals for Veterans Claims (Court): (1) vacated the part of the June 2019 Board decision that denied the claims herein on a secondary basis (aggravation) only and remanded them for further development and adjudication; and (2) dismissed the appeal with respect to the claims on a causation basis only (which the Veteran expressly waived). Bowers v. Shinseki, 26 Vet. App. 201, 210 n.12 (2013) (recognizing an appellant’s right to expressly abandon parts of his appeal). As such, the only issues currently before the Board are, as listed above: (1) entitlement to service connection for a right hip disability secondary to (aggravated by) service-connected back disability; and (2) entitlement to service connection for a left hip disability secondary to (aggravated by) service-connected back disability. To be clear, entitlement to service connection for either disability on a causation basis (direct or secondary) is no longer before the Board; only entitlement to secondary service connection on an aggravation basis remains before the Board. In September 2020, the Board remanded the bilateral hip disability issues to obtain an adequate medical opinion regarding whether the Veteran’s hip disabilities had been aggravated due to his back disability. The Board requested that the examiner use the correct standard and not to opine on whether the Veteran’s hip disability had permanently been aggravated. The Board finds that VA substantially complied with the remand instructions and the issues are properly before the Board for adjudication. Service Connection 1. Entitlement to secondary service connection on an aggravation basis for a right hip disability (secondary to service-connected back disability) 2. Entitlement to secondary service connection on an aggravation basis for a left hip disability (secondary to service-connected back disability) The Veteran contends that his service-connected lumbar spine disability aggravated his current bilateral hip disability. He claims that his bilateral hip disability developed as a result of walking with an altered gait due to his back issues. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310 (b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Additionally, as discussed above, the Veteran has withdrawn part of the appeal discussing secondary service connection on a direct basis and thus, only secondary service connection due to aggravation will be discussed. The Board finds that the preponderance of the evidence is against finding that the Veteran’s bilateral hip disabilities were aggravated beyond its natural progression by his service-connected lumbar spine disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310 (a). The Veteran’s service treatment records (STRs) are silent for any hip problems. The Veteran sought treatment for bilateral hip discomfort in November 2011. It was noted that he had been diagnosed as having osteonecrosis of both hips, the etiology of which was unknown. The Veteran reported an onset of pain in both hips, the left slightly worse than the right, with complaints of pain and stiffness of a moderate nature on a daily basis. He also complained of back discomfort. Upon examination, his gait and station were noted to be normal. It was noted that his left leg was short related to the right, and that he had little to no motion in his hips. X-rays were found to reveal advanced end-stage degenerative changes of both hips. In December 2011, the Veteran underwent a left total hip arthroplasty with one-centimeter leg lengthening. Later in December 2011, the private physician who performed the arthroplasty noted that the Veteran had been a patient of his for evaluation and treatment of osteonecrosis of the hips. The physician noted that the Veteran had indicated that he had a service-connected injury to his lumbar spine and the Veteran felt that the injury to his back had caused him to walk with an exaggerated posture which had been contributory to the changes present in his hip. The physician observed that he did not have records associated with the Veteran’s back injury and his treatment, but that he had informed the Veteran that “it is possible that he suffered early injuries to his hips at the same time as his back injury or that his antalgic gait patter could contribute to his hip issues.” The Veteran underwent a right total hip arthroplasty sometime between April and July 2012. In January 2014, a VA examiner opined that the Veteran’s bilateral hip disability was less likely than not proximately due to or the result of his service-connected back disability. The examiner felt that the December 2011 private physician’s opinion was speculation and not supported by current medical literature and research. To support his opinion, the VA examiner stated that he had examined and measured the Veteran and reviewed multiple pieces of medical literature. It is not entirely clear from the examiner’s report whether in addition to the matter of direct causation, if he considered the likelihood that the Veteran’s bilateral hip disabilities had been aggravated by his service-connected back disability. In December 2018, the Board obtained a Veteran’s Health Administration (VHA) medical opinion from an orthopedic surgeon regarding whether it was more likely than not that the Veteran’s bilateral hip disabilities were caused or aggravated by his service-connected lumbar spine disability. After review of the Veteran’s claims file, the orthopedic surgeon stated that the Veteran’s bilateral hip disability was less likely than not proximately due to the service-connected back disability since there was no medical evidence supporting any causative association between lumbar or thoracic spine pathology with osteonecrosis/avascular necrosis of the head of the femur. The surgeon explained that osteonecrosis or avascular necrosis is known to be idiopathic or associated with certain etiologically factors that include but are not limited to fracture neck of femur, alcohol use, steroid use, and coagulation abnormalities. The examiner further opined that he could not find any association between abnormalities of posture, alignment, compensatory mechanisms related to the service connected back disability and the claimed osteonecrosis of head of the femur. The examiner furthered that the Veteran’s bilateral hip disability was not permanently aggravated beyond the natural disease progression by the service-connected thoracic degenerative joint disease or lumbar strain since there is no evidence of any permanent aggravation or worsening of the bilateral avascular necrosis of the hip. The surgeon explained that he could not find any evidence suggesting that the rate of the progression is known to be influenced by any lumbar or thoracic spine pathology. The Board acknowledges that this is an inadequate opinion due to standard that was applied in it. Aggravation is not considered only if the disability permanently worsened, it is also considered if it temporarily worsened the disability. The Veteran was afforded a VA examination in October 2020 where he reported the onset of his bilateral hip pain in about 2006. The examiner explained that a review of the Veteran’s service treatment records (STRs) was silent for any complaints of hip pain and that the Veteran had a bilateral hip replacement in 2011 and 2012. The examiner explained that osteonecrosis of the femoral head usually affects young adults in the third and fourth decades of life. He furthered that there are two groups of patients, ones with no apparent etiology and those with a clearly identified etiology. He explained that there are multiple contributory etiological factors of osteonecrosis, including the use of glucocorticoids and excessive alcohol intake. These are associated with more than 80 percent of atraumatic cases. The examiner furthered that osteonecrosis of the femoral head is the result of combined effects of genetic predisposition, metabolic factors, and local factors affecting blood supply. The examiner reported that in the case of the Veteran there was no known trauma which precipitated the onset of symptoms and the reported onset of symptoms was approximately ten years after the back injury. The examiner furthered that unknowns are the disease stage at the time of diagnosis, use of glucocorticoids, and or alcohol intake. He furthered that the progression of the disease is very individualistic with contributing factors including physical therapy, comorbidities, and other protective factors employed at the time of diagnosis. The examiner explained that if the acquired gait changes caused by the back injury aggravated the progression of the Veteran’s osteonecrosis of the femoral head, one would have to demonstrate how the change of gait increased the rate of degradation of the femoral head and the only metric to compare the scenario to is the expected prognosis of osteonecrosis of the femoral head. The examiner furthered that considering more than 50 percent of patients with osteonecrosis of the femoral head require surgical treatment within three years of diagnosis, the Veteran clearly exceeded the expected time from diagnosis to surgical intervention at five years. He explained that outside of this metric, there is no known objectionable means of determining aggravation without resorting to mere speculation. The examiner ultimately opined that the Veteran’s bilateral osteonecrosis of the femoral head was less likely than not aggravated beyond its normal progression by the Veteran’s service-connected back disability. Based on the October 2020 VA opinion, the Board finds that the Veteran’s bilateral hip disabilities were not aggravated by his service-connected lumbar spine disability and thus entitlement to service connection for bilateral hip disability is not warranted. The Board acknowledges the Veteran submitted a private medical opinion in December 2011 where the examiner found it possible that the Veteran suffered early injuries to his hips at the same time as his back injury or that his antalgic gait pattern could contribute to his hip issues. However, the examiner noted that he did not have the records associated with the hip or back injury and his treatment. The Board finds that this medical opinion has very little probative weight since the examiner did not review the Veteran’s STRs or any of his other treatment records post-service regarding his back or hip disabilities. A review of the claims file is not the determinative factor in assigning probative value to a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). However, an examiner should have information regarding relevant case facts. In this case, the private provided did not have access to relevant case facts because he did not have records pertaining to his injury. In addition, the medical opinion states that it is “possible” that [the Veteran’s] antalgic gait pattern could contribute to his hip issues.” This opinion employed speculative language and is therefore not an adequate opinion. Bloom v. West, 12. Vet. App. 185, 187 (1999) (holding that a medical opinion phrased in speculative terms is inadequate). The Board acknowledges the Veteran’s contention that his current bilateral hip disability was aggravated by his service-connected lumbar spine disability. Lay persons are competent to provide opinions on some medical issues. Kahana, 24 Vet. App. at 435. However, determining the etiology of the Veteran’s bilateral hip disabilities requires medical inquiry into the Veteran’s anatomical and physiological functioning. With regard to the specific issue in this case, whether his bilateral hip disabilities were aggravated by his service-connected lumbar spine disability, falls outside the realm of knowledge of the Veteran in this case. See Jandreau, 492 F.3d at 1377 n.4. Such internal processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. As a result, the probative value of his lay assertions is low. The October 2020 VA medical opinion is of significantly more probative value since the examiner reviewed the Veteran’s STRs, post-service treatment records, and examined the Veteran. (Continued on the next page)   The Board concludes that the preponderance of the evidence is against the claim for service connection for the Veteran’s bilateral hip disabilities. The benefit of the doubt rule therefore does not apply, and service connection for these disabilities is not warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.